Discussion paper, Biodiversity and Biotechnology and the Protection of Traditional Knowledge Conference, April 4-6, 2003, Washington University School of Law, St. Louis, Missouri

ANSWERING THE CALL: PUBLIC INTEREST

INTELLECTUAL PROPERTY ADVISORS

Michael A. Gollin[a]

Despite the growing debate about the complex global role of intellectual property over the past decade, and the diversity of policy initiatives and academic studies spawned by (and contributing to) this debate, little has been done to meet the practical demands of developing countries and public interest organizations for access to intellectual property expertise on a case-by-case basis. Wealthier organizations and private industry have access to such expertise, by paying for the services of the intellectual property professionals that are concentrated in developed countries. In contrast, in developing countries, there are few intellectual property professionals and many organizations cannot afford to pay for their services. Moreover, many intellectual property professionals are ill equipped to meet the needs of public interest clients. Society benefits when all people have access to good information and competent advice, and fairness dictates that when poor and excluded people are confronted with the very complicated issues involving intellectual property, they should have access to expert advice and representation. Public Interest Intellectual Property Advisors (PIIPA) was established as an independent international service and referral organization that can help fill the need for assistance by making the know-how of intellectual property professionals available to developing countries. PIIPA’s services are intended to be practical, not policy-oriented. PIIPA’s goal is to provide balance and information that may help harness the power of informed debate to solve problems, and combat the fear and ignorance that make solutions impossible and lead to protracted disputes. PIIPA expects its beneficiaries will find new ways to solve problems in such contentious and difficult fields as traditional knowledge, biodiversity, health, and agriculture.

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In recent years, the impacts of intellectual property laws and practices on developing countries have increased dramatically. Globalization has increased the contacts between developing countries and governments and organizations within countries with well-developed intellectual property legal regimes (mostly, the industrialized nations of the Northern Hemisphere, especially the European Union and the United States). Numerous international conventions and trade agreements that affect developing countries expand or involve intellectual property rights. These include the General Agreement on Tariffs and Trade’s (“GATT”) Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”),[1] the United Nations Convention on Biological Diversity,[2] and the International Convention for the Protection of New Varieties of Plants.[3] As these treaties have multiplied, their secretariats have dealt continuously with issues involving the impact of intellectual property on developing countries and other public organizations.[4] In addition, international organizations, such as the World Intellectual Property Organization (“WIPO”), have begun to examine in-depth the role of intellectual property in relation to issues of particular concern for developing nations, such as traditional knowledge, cultural heritage and communal rights.[5]

Despite these rapid changes and their effects, intended or otherwise, on developing countries, most developing countries do not have access to qualified intellectual property professionals who are willing and able to help them address the myriad issues they now face. Rather, most of the participants on the global and national stage have been economists, academics, anthropologists, scientists, and policy specialists, but not intellectual property professionals. In response to this need, in 2002, an international association of concerned individuals, including the author of this paper, decided to establish a new public interest organization interest. The new organization was named Public Interest Intellectual Property Advisors (“PIIPA”), and was incorporated as a non-profit, tax-exempt global pro bono initiative to provide intellectual property-related services for governments, agencies and research institutions in developing countries and other public interest clients.

This paper describes the genesis and development of PIIPA, focusing on the need for services of the type PIIPA plans to offer as well as the logistical, legal, ethical and political hurdles that public interest organizations working in the area of intellectual property must overcome. In Part I, this paper describes the growing need for intellectual property-related legal and professional assistance for developing countries, and in the public interest. Part II discusses how PIIPA was founded and organized to address these needs. Part III addresses the on-going development of PIIPA, including illustrative cases, planned growth, and future directions.

I. The Need for Intellectual Property-Related Legal Assistance in Developing Countries.

The expansion of international intellectual property law to date has been based on the argument that it brings benefits to innovators in all countries, but it has proceeded primarily at the insistence of industrialized, technology-exporting nations that have sought to obtain the same intellectual property protection for their inventions and creations in developing countries that they benefit from in industrialized countries.[6] Opponents of intellectual property expansion include some non-industrialized, technology-importing countries which have historically opposed or sought to limit the expansion of intellectual property rights,[7] seeking to retain access to the technologies of the wealthier countries, and discounting the significance of incentives for innovation in their countries. Others oppose particular kinds of intellectual property such as “life patents” and internet patents. At the same time a movement has sought to assert new types of intellectual property rights, such as sovereign rights over genetic resources previously understood to be the common heritage of humankind,[8] and rights to traditional knowledge.

So, the international laws relating to intellectual property developed in recent years have been met with wariness and basic opposition to the widespread implementation of Western-style intellectual property laws, as noted above. Is the current regime being applied fairly and equitably to people in developing countries? On at least one level the answer is no. Given that expertise in intellectual property laws, strategies, and management is currently limited primarily to professionals in industrialized countries and in the private sector, there exists a great gap in access to such expertise for developing countries.

Expertise in intellectual property can help advance the public interest in a wide range of endeavors. These include: health care (e.g., obtaining access to patented medicines); agriculture (e.g., licensing of improved crop varieties); biodiversity (e.g., entering into biodiversity prospecting agreements and challenging misappropriation of biological resources); environmental protection (e.g., entering into contracts for technology transfer for renewable energy sources); traditional/indigenous knowledge (e.g., agricultural and health practices, and protecting traditional designs, handiwork, art, music, etc.); scientific research (e.g., obtaining patents or other protection on inventions); and software and technology licensing (e.g., dealing with internet access and related issues/disputes).

A consensus should support the benefits of providing intellectual property expertise to developing country and public interest clients. Intellectual property expansionists would recognize the need for expert assistance to realize the promise of intellectual property in innovation in health, agriculture, the environment, and industry. Opponents of intellectual property expansion, or of particular types of intellectual property, should support access to intellectual property professionals who may mitigate or avoid negative impacts of intellectual property, balance the unfair advantage of wealthier organizations who may be collaborators or opponents, and find specific policy/legal initiatives that may be workable and therefore viable alternatives in international policy discussions.

A small, informal survey conducted in the summer of 2002 confirmed the need of developing countries for intellectual property-related legal assistance. The survey polled professionals working in a variety of technical sectors (e.g., biodiversity, environment, health) and geographical regions (e.g., both industrialized and non-industrialized nations) about their knowledge of the need for legal assistance for public interest intellectual property-related projects in developing countries. In response to a question regarding how many potential clients would seek out professional assistance on intellectual property-related legal issues, the majority of the respondents indicated that more than 100 such clients exist worldwide, with over one quarter indicating that more than 500 such clients may exist. In addition, the majority of the respondents indicated that such clients would have needs that arise on a continuous basis. In response to a question regarding the fields in which such intellectual property-related projects would arise, the respondents listed a variety of fields, including health, agriculture, biodiversity, environmental technology, cultural/art and information technology. Similarly, the survey responses suggest that developing nations may need assistance in many different areas of intellectual property law, including: patents, copyright, trade secrets, licensing, litigation, and legislation.

As the survey suggests, there is an acute need for public interest intellectual property-related legal assistance. However, as noted above, many people and organizations in developing countries are either unaware of, or unable to deal with, the impact of intellectual property rights either in their favor or against them. In addition, in most of these countries, there are few qualified legal professionals who can represent the rights and interests of such people or organizations – even for those who could afford such services. Further, most of the non-industrialized countries in the world have very limited resources to expend on acquiring knowledge, training or professional assistance for the types of intellectual property-related projects enumerated above. Many of the organizations in this field lack intellectual property professionals on staff or involved directly, and existing organizations focus on policy formation, or generalized training and capacity building regarding intellectual property management, not practical case-by-case representation. Thus, there is a gap to fill for many developing countries and public interest organizations that need access to pro bono publico intellectual property services (literally “for the good of the public”).

Conversely, among intellectual property professionals in industrialized nations (including lawyers, agents, and licensing specialists), there is a need for information regarding the types of public interest projects for which their education, skills and experience are uniquely suited. While many organizations admirably perform this service in other areas of the law, such as poor criminal defendants, immigrants seeking asylum, and formation of small non-profit corporations by artists, few organizations attempt to inform legal professionals about the opportunities for intellectual property-related public interest work. Many intellectual property professionals in industrialized countries, especially law students and recent graduates, have expressed a desire to use their skills and experience to improve the role that intellectual property plays in the developing world and would relish the chance to share their expertise with disadvantaged public interest clients. However, as noted above, intellectual property professionals have no regular reliable sources of information about how they can help developing countries cope with the plethora of intellectual property issues they face. If developing countries are to gain access to useful intellectual property expertise, this information deficiency must be remedied.

With this basic sketch of the need of public interest clients for intellectual property-related legal assistance in mind, the following subparts discuss specific examples of intellectual property-related issues that affect developing nations and the need for professional legal assistance to address such issues.

A. Agricultural Technology.

The protection of agricultural technology, and biotechnology in particular, is an important and contentious area of intellectual property. Agricultural biotechnology, in its broadest interpretation, refers to the application of biotechnology to agricultural problems in order to increase crop yields, open up new growing environments, use less chemical pesticides, improve nutritional content and decrease energy consumption in growing and processing.[9] Generally, these activities involve research and breeding to produce improved crops, and the innovators charge a premium price for such improved varieties, in order to recover the investment in making the improvements. A key component of commercial innovative breeding is the ability to ensure that farmers must buy the improved seed each year, and not keep and replant seed from the past season.

The highly-touted benefits of agricultural biotechnology are not readily accepted by everyone, though, and many have raised concerns ranging from possible increased use of herbicides to unintended effects stemming from the planting, use and consumption of genetically modified organisms. Along with the rapid pace of technology innovation, a host of legal mechanisms for protecting the intellectual property rights in these agricultural biotechnology advances have developed.[10]

Major changes in the legal regime surrounding agricultural biotechnology have occurred in recent decades, ranging from UPOV’s requirement that “[e]ach Contracting Party grant and protect breeders’ rights”[11] to the United States Supreme Court’s decision in Diamond v. Chakrabarty that genetically modified bacteria are “compositions of matter” or “manufacture” subject to patenting.[12] This legal regime continues to evolve -- for example, the Canadian Supreme Court recently held that a genetically modified mouse, the so-called Harvard mouse or oncomouse, is not patentable subject matter; and in so holding noted that: “The patenting of all plants and animals, and not just human beings, raises several concerns that are not appropriately dealt with in the [Canadian] Patent Act.”[13] The impact of this decision on the Canadian agriculture market, on the international legal regime and other countries’ laws remains to be seen, but it illustrates that determining how intellectual property laws apply to agricultural biotechnology innovations relating to plants and animals presents high impact issues whose resolution requires significant professional expertise.

Also, the enforcement of intellectual property licensing strategies by agricultural biotechnology companies has led to high profile court challenges against farmers, for example in the case of Monsanto v. Percy Schmeiser in Canada.[14] Intellectual property concerns pervade even technical, non-legal measures to prevent farmers from re-using seed from past growing seasons, such as the so-called genetic use restriction (“Terminator”) technology. Recently, a body of the Convention on Biological Diversity (described in the following section) notified WIPO and UPOV that there is a need to examine “the specific intellectual property implications of genetic use restriction technologies, particularly in respect of indigenous and local communities.”[15] This communication notes that the potential impact of genetic use restrictions on smallholder farmers, indigenous and local communities and on farmers’ rights needs to be explored with an emphasis on the development of new legal mechanisms to cope with such restrictions.[16] In addition, the World Trade Organization’s (“WTO”) TRIPS Council is currently reviewing Article 27.3(b), regarding patent protection for plant and animal inventions.[17]